No. 94,797
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
PAUL ROBERT DAYHUFF ,
Appellant.
SYLLABUS BY THE COURT
1. K.S.A. 22-3403 and K.S.A. 22-3421 give a criminal defendant the right to a unanimous jury verdict. An appellate court exercises de novo review over issues of jury unanimity.
2. As a general rule, juries are presumed to have followed instructions given by the trial court. Moreover, it is a jury's legal duty and proper function to accept the law as given in the instructions.
3. Where multiple acts are alleged and any one of them could constitute the crime charged, the jury must be unanimous as to which act or incident constitutes the crime. To ensure jury unanimity in these cases, our Supreme court has required that either the State elect the particular criminal act upon which it will rely for conviction or the trial court instruct the jury that all of the jurors must agree that the same underlying criminal act has been proved beyond a reasonable doubt.
4. Reviewing whether a trial court has properly admitted evidence under K.S.A. 60-455 requires an appellate court to review the legal basis for the trial court's decision. When an appellate court reviews the legal basis for admitting evidence, the standard of review is de novo.
5. Although evidence of prior crimes and other civil wrongs is inadmissible to prove a person's propensity to commit crime, thereby implying that he or she committed the crime at issue, K.S.A. 60-455 allows the admission of such evidence when that evidence is relevant to prove some other material fact, including motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Before evidence of prior crimes may be admitted under K.S.A. 60-455, three requirements must be met. First, the evidence must be relevant to prove one of the facts specified in the statute. Second, the fact must be a disputed, material fact. Third, the probative value of the evidence must outweigh its potential prejudice. If these three requirements are met, an appellate court's review is limited to whether the trial court abused its discretion. Discretion is abused when no reasonable person would take the view of the trial court.
6. One theory for admitting evidence of a prior crime or civil wrong to prove plan under K.S.A. 60-455 is to show that the method of committing the prior crime is so similar to that used in the present crime that one could reasonably conclude that the defendant committed both crimes.
7. Normally, the admission or exclusion of evidence is measured by the harmless error rule. In determining if the erroneous admission or exclusion of evidence is harmless, the appellate court must consider if it is inconsistent with substantial justice, that is, affects the substantial rights of a defendant and, if not, whether this court can declare beyond a reasonable doubt that the error had little, if any, liklihood of having changed the result of the trial.
8. A trial court may declare a mistrial when prejudicial conduct makes it impossible to proceed with the trial without injustice to a defendant. K.S.A. 22-3423(1)(c). Declaration of a mistrial is a matter entrusted to the trial court's discretion, and the decision will not be set aside on appeal unless an abuse of discretion is clearly shown. The defendant has the burden of proving that he or she was substantially prejudiced.
9. When reviewing a trial court's decision of whether to grant a new trial, an appellate court is limited to determining whether the trial court abused its discretion.
10. A defendant in a criminal trial is entitled to a fair and impartial trial. The purpose of a trial in a criminal case is to ascertain the truth or falsehood of the charges against the defendant, and it is a part of the duty of the trial judge to see that the full truth is developed by the evidence.
11. A trial court has an independent duty to ensure that criminal defendants receive a trial that is fair and does not contravene the Sixth Amendment to the United States Constitution.
12. When a trial court is told of a possibility that a witness' testimony may have been improperly influenced by a bystander's conduct in the courtroom, the trial court is required to initiate an investigation to ensure that the defendant's right to a fair trial has not been violated.
13. Multiple trial errors may require reversal of a defendant's conviction if the cumulative effect of the errors substantially prejudiced the defendant and denied him or her a fair trial. No prejudicial error may be found if the evidence against the defendant was overwhelming.
Appeal from Labette District Court; DANIEL L. BREWSTER, judge. Opinion filed May 18, 2007. Reversed and remanded.
Patrick H. Dunn, of Kansas Appellate Defender Office, for appellant.
Jennifer Brunetti, special prosecutor, Steven W. Wilhoft, county attorney, and Phill Kline, attorney general, for appellee.
Before McANANY, P.J., GREEN and CAPLINGER, JJ.
GREEN, J.: Paul Robert Dayhuff appeals his jury trial conviction and sentence for aggravated indecent liberties with a child in violation of K.S.A. 21-3504(a)(3)(A). First, Dayhuff argues that he was denied his right to a unanimous verdict because the prosecutor relied on acts not charged in the complaint to obtain his conviction. Nevertheless, the jury in this case was properly instructed on the elements of the charged crime. Moreover, the State never argued to the jury that uncharged acts could provide a basis for Dayhuff's conviction. Further, the jury was properly instructed on juror unanimity in a multiple acts case. Therefore, Dayhuff's argument fails.
Next, Dayhuff argues that his right to a fair trial was violated by the admission of prior evidence under the plan exception of K.S.A. 60-455. Because there was insufficient evidence presented in this case to show a "strikingly similar" or a "signature" act, we conclude that the trial court erred in admitting evidence of Dayhuff's prior crimes under the plan exception of K.S.A. 60-455. As a result, Dayhuff's case must be reversed and remanded for a new trial. Next, Dayhuff contends that his right to a fair trial was violated by the conduct of a child advocate during the child's testimony. We determine that the trial court's refusal to allow Dayhuff to develop a factual basis for his motion for mistrial at the time of trial denied him the opportunity to show what, if any, influence the child advocate's conduct may have had on the child's testimony when the child's credibility was being considered by the jury. Accordingly, we reverse and remand for a new trial.
Next, Dayhuff argues that cumulative error denied him a fair trial. Nevertheless, we have already determined that there is reversible error in this case. Whether considered alone or in combination, the errors in this case denied Dayhuff a fair trial.
Finally, citing Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), Dayhuff contends that the trial court erred in including his prior convictions in his criminal history. Because we are reversing, we need not consider Dayhuff's challenge to his criminal history. But see State v. Ivory, 273 Kan. 44, 41 P.3d 781 (2002).
Facts
On June 15, 2003, Pam Brown reported to the police that her daughter, H.D., had told Brown that she had been sexually abused by Dayhuff. Brown and Dayhuff had been married to each other but had divorced in February 1998. Brown told the interviewing officer that after returning home from a visit with Dayhuff, H.D. had told Brown that Dayhuff had put his hands down H.D.'s pants several times and had attempted to get H.D. to touch his penis. H.D. was 9 years old at the time of the alleged incidents.
The sexual abuse allegedly occurred when H.D. was staying with Dayhuff at his brother's home between June 2, 2003, and June 13, 2003. H.D. told Brown about the sexual abuse the day before she was scheduled to return to Dayhuff's home for another visit. Brown testified that H.D. told her that Dayhuff had touched her vagina and had attempted to place H.D.'s hand on his penis. H.D. told Brown that the touching had occurred at night. Brown called the police and reported the sexual abuse. Brown also faxed a voluntary written statement to the police department. After Brown faxed her statement, H.D. told Brown that Dayhuff had said that he would kill Brown if H.D. told her about the abuse.
Susan Beitzinger, an investigative social worker, interviewed H.D. on June 17, 2003. The interview was videotaped. Beitzinger was the only person with H.D. during the interview. A police officer and Katherine Adams, a child advocate, observed the interview through a one-way mirror. During the interview, H.D. told Beitzinger that she had lain down at night in a bedroom at Dayhuff's brother's home when Dayhuff raised her nightgown and reached into her underwear and touched her private part. H.D. was lying in her bed, and Dayhuff was lying naked in his bed in the same room. Dayhuff's brother was in a downstairs bedroom. H.D. told Beitzinger that Dayhuff told H.D. to keep it a secret. The following morning, H.D. was still lying in her bed when Dayhuff asked her to touch his private part. H.D. refused to touch Dayhuff.
On June 24, 2003, Brown took H.D. to the hospital for a sexual assault examination. H.D. told the examining nurse, "I don't like my daddy any more. He touched me. He touched me a lot of times." The examining nurse found no physical evidence of sexual abuse. Nevertheless, the nurse testified that she would not expect to find any physical evidence of sexual abuse when a child had been touched on the outside of the vagina. Moreover, the nurse testified that when an exam occurs over 72 hours after the alleged sexual abuse, any trauma would have healed by that time.
The State charged Dayhuff with one count of aggravated indecent liberties with a child in violation of K.S.A. 21-3504(a)(3)(A). Before trial, the State moved to admit evidence of Dayhuff's prior crimes against his previous girlfriend's daughter, S.A., to show plan under K.S.A. 60-455. The trial court granted the State's motion to admit the evidence under K.S.A. 60-455. At trial, Bobbie Wiltsie, who investigated S.A.'s case, testified about four separate incidents of sexual abuse allegedly committed by Dayhuff against S.A. In addition, S.A. testified about two of these instances of sexual abuse. Before Wiltsie and S.A. testified, Dayhuff renewed his objection to the introduction of the prior crimes evidence under K.S.A. 60-455.
H.D. testified at trial about the alleged sexual abuse. H.D. recounted two incidents when Dayhuff had touched her while they were lying in separate beds in a bedroom at Dayhuff's brother's house. During the first incident, Dayhuff reached under H.D.'s clothes and touched the outside of her vagina. H.D. testified that Dayhuff was not naked when he touched her. H.D. testified that this incident occurred at night. In the second incident, Dayhuff again reached under her clothes and touched the outside of her private part. Dayhuff also grabbed H.D.'s hand and attempted to have her touch him. According to H.D., this second incident occurred when it was dark outside. H.D. testified that Dayhuff told her to keep it a secret.
Immediately after H.D.'s testimony, Dayhuff moved for a mistrial on the basis that an individual in the courtroom had been gesturing to H.D. and shaking her head while H.D. testified, essentially coaching H.D.'s testimony. Dayhuff informed the trial court that another attorney, John Bullard, who was watching the trial, had told him of the individual's action and that defense counsel's secretary had also been in the courtroom. Dayhuff requested that he be allowed to present testimony from his counsel's secretary about the individual's actions. The trial court told Dayhuff that he could bring up the issue in a motion for a new trial if he was convicted.
The jury found Dayhuff guilty of aggravated indecent liberties with a child. Dayhuff moved for a new trial. Among numerous issues raised in his motion for a new trial, Dayhuff argued that although he informed the trial court that an individual in the courtroom had been directing H.D.'s testimony, the trial court did not take any action with this information. After conducting an evidentiary hearing, the trial court denied Dayhuff's motion for a new trial. The trial court sentenced Dayhuff to 204 months in prison.
I. Was Dayhuff denied his right to a unanimous verdict?
First, Dayhuff argues that he was denied his right to a unanimous verdict because the State relied upon acts that were legally insufficient to sustain a conviction for aggravated indecent liberties with a child based upon how the crime was charged in the complaint.
K.S.A. 22-3403 and K.S.A. 22-3421 give a criminal defendant the right to a unanimous jury verdict. State v. Unruh, 281 Kan. 520, 527, 133 P.3d 35 (2006). An appellate court exercises de novo review over issues of jury unanimity. State v. Kesselring, 279 Kan. 671, 678, 112 P.3d 175 (2005).
Dayhuff maintains that the State argued to the jury that Dayhuff's conviction could be based upon either: (1) Dayhuff touching H.D. on the outside of her vagina; or (2) Dayhuff placing H.D.'s hand on his penis the next morning. The complaint in this case charged Dayhuff with aggravated indecent liberties with a child based upon "engaging in an act of lewd fondling or touching of the person of H.D." Although K.S.A. 21-3504(a)(1)(A) defines aggravated indecent liberties with a child as engaging in "[a]ny lewd fondling or touching of the person of either the child [who is under 14 years of age] or the offender" (emphasis added), the State never amended the complaint to allege the alternative means of committing the crime by H.D. touching Dayhuff. Dayhuff alleges that the State's failure to amend or clarify the complaint to allege a lewd fondling or touching of Dayhuff resulted in jury confusion and violated his right to a unanimous verdict.
A. Instruction on Elements of Crime
Nevertheless, the jury was properly instructed on the elements of aggravated indecent liberties with a child consistent with the elements alleged in the complaint. The jury was instructed that in order to convict Dayhuff of aggravated indecent liberties with a child, they needed to find that Dayhuff "fondled or touched H.D. in a lewd manner, with intent to arouse or to satisfy the sexual desires of either H.D. or the defendant, or both." No mention was made in the jury instruction of Dayhuff forcing or attempting to force H.D. to touch him. "As a general rule, juries are presumed to have followed instructions given by the trial court. [Citation omitted.]" State v. Rogers, 276 Kan. 497, 503, 78 P.3d 793 (2003). Moreover, "[i]t is a jury's legal duty and proper function to accept the law as given in the instructions." State v. McClanahan, 212 Kan. 208, 214, 510 P.2d 153 (1973). The jury was properly instructed that the charged crime of aggravated indecent liberties with a child was based upon Dayhuff touching H.D.
B. State's Argument
Moreover, Dayhuff mischaracterizes the State's argument to the jury. Before trial, Dayhuff sought to clarify the multiple acts upon which the State was proceeding. Dayhuff questioned whether the State was relying on the following acts: (1) the act where Dayhuff touched H.D. and (2) the act where Dayhuff forced H.D. to touch him the following morning. The State responded that the two acts upon which it was proceeding were the two times that Dayhuff touched H.D., once at night and once in the morning.
Indeed, during opening statement, the State told the jury that the evidence would show there had been two instances of Dayhuff touching H.D., once at night and once in the morning. Moreover, at the beginning of closing argument, the State informed the jury that the evidence showed that there had been two instances of Dayhuff touching H.D.:
"Now that you've heard all the evidence, it should be apparent to you that Paul Dayhuff abused the trust with . . . [H.D.], when he touched her vagina, [not] once but twice. Both of these touches occurred between the days of June 2nd and June 13th, 2003, in Labette County in Oswego, Kansas."
The State proceeded to discuss the evidence that Dayhuff had touched H.D. twice, first at night and then the following morning. Although the State, while discussing the evidence concerning the second touching, did go over the testimony that Dayhuff had also attempted to force H.D. to touch him that morning, the State never argued that the act of H.D. touching Dayhuff could provide a basis for his conviction.
C. Unanimity Instruction
Although the State did not elect which of the two instances of Dayhuff touching H.D. it was relying to support the charged crime of aggravated indecent liberties with a child, there was no error here based on the unanimity instruction given to the jury. Where multiple acts are alleged and any one of them could constitute the crime charged, the jury must be unanimous as to which act or incident constitutes the crime. To ensure jury unanimity in these cases, our Supreme Court has required that either the State elect the particular criminal act upon which it will rely for conviction or the trial court instruct the jury that all of the jurors must agree that the same underlying criminal act has been proved beyond a reasonable doubt. State v. Dickson, 275 Kan. 683, 696, 69 P.3d 549 (2003). The pattern jury instructions for Kansas have a specific instruction for use in multiple acts cases. See P.I.K. Crim. 3d 68.09-B. Here, the trial court instructed the jury in accordance with P.I.K. 68.09-B as follows: "The [S]tate claims distinct multiple acts which each could separately constitute the crime of aggravated indecent liberties with a child. In order for the defendant to be found guilty of aggravated indecent liberties with a child, you must unanimously agree upon the same underlying act." Therefore, we conclude that Dayhuff was not denied his right to a unanimous verdict.
II. Did the trial court err in admitting prior crimes evidence under K.S.A. 60-455?
Next, Dayhuff contends that the trial court violated his right to a fair trial by allowing the State to present evidence from a 1992 case, where he pled no contest to two counts of indecent liberties with a child, under the plan exception of K.S.A. 60-455.
Previously, our Supreme Court has stated that "[a]ppellate review of the admission of prior crimes evidence under K.S.A. 60-455 is limited to whether the trial court abused its discretion or whether the trial court admitted clearly irrelevant evidence. [Citations omitted.]" State v. Dotson, 256 Kan. 406, 412, 886 P.2d 356 (1994). More recently, however, our Supreme Court has applied a de novo standard in reviewing the trial court's admission of K.S.A. 60-455 evidence: "Reviewing whether the trial court properly admitted evidence pursuant to K.S.A. 60-455 requires the court to review the legal basis for the district court's decision. When an appellate court reviews the legal basis for admitting evidence, the standard of review is de novo." State v. Horton, 283 Kan. 44, Syl. ¶ 2, 151 P.3d 9 (2007).
In State v. Overton, 279 Kan. 547, 551-52, 112 P.3d 244 (2005), our Supreme Court set forth the requirements for the admissibility of evidence under K.S.A. 60-455:
"Although evidence of prior crimes and other civil wrongs is inadmissible to prove a person's propensity to commit crime, thereby implying that he or she committed the crime at issue, K.S.A. 60-455 allows the admission of such evidence when that evidence is relevant to prove some other material fact, including motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Before evidence of prior crimes may be admitted pursuant to K.S.A. 60-455, three requirements must be met. 'First, the evidence must be relevant to prove one of the facts specified in the statute. Second, the fact must be a disputed, material fact. Third, the probative value of the evidence must outweigh its potential prejudice.' [Citation omitted.]"
If these three requirements are met, an appellate court's review is limited to whether the trial court abused its discretion. Discretion is abused when no reasonable person would take the view of the trial court. State v. Jones, 277 Kan. 413, 420, 85 P.3d 1226 (2004).
The State's motion to admit evidence under K.S.A. 60-455 requested that evidence of Dayhuff's prior sex crimes against S.A. be admitted to prove plan. After conducting an evidentiary hearing, the trial court allowed the State to introduce evidence of Dayhuff's prior criminal conduct towards S.A. under K.S.A. 60-455.
Wiltsie and S.A. testified at trial about Dayhuff's molestation of S.A. in 1991. Wiltsie was a child abuse investigator when he interviewed S.A. about the sexual abuse. S.A. told Wiltsie that in June 1991, S.A., her sister, her mom, and Dayhuff were all sleeping in a bedroom at Dayhuff's brother's home. Dayhuff was engaged to S.A.'s mother. In the middle of the night, S.A. had asked Dayhuff if she could sleep next to him because she was cold. S.A.'s mother and sister were in the same bed as Dayhuff. As S.A. was lying next to Dayhuff, he put his hand underneath her clothing and touched the outside of her vagina.
S.A. told Wiltsie about a second touching that occurred at S.A.'s house in Oswego. S.A., her sister, her mother, and Dayhuff were watching television when S.A. and her sister fell asleep on the floor of the living room. Dayhuff lay down on the floor and reached underneath S.A.'s clothing and touched the outside of her vagina. S.A.'s mother was asleep on the couch when the touching occurred. Wiltsie testified that S.A. told him about a third incident when S.A. and Dayhuff were again lying on the floor in the living room and he reached under her clothing and touched the outside of her vagina. S.A.'s mother was again asleep on the couch.
S.A. also told Wiltsie about a fourth touching that occurred in September or October 1991 when she was at home watching television. Dayhuff covered S.A.'s mother, who was asleep on the couch, with a blanket and lay down on the floor next to S.A. Dayhuff reached underneath S.A.'s clothing and touched the outside of her vagina. Dayhuff placed S.A.'s hand on his penis, but S.A. pulled her hand away from him. Dayhuff again placed S.A.'s hand on his penis, but S.A. pulled her hand away from him and placed it under her pillow. S.A. was 10 years old when the incidents occurred.
S.A. testified at trial that she could remember only two of the touching incidents involving Dayhuff. S.A. testified about an incident when she and Dayhuff were lying on the floor watching television and her mother was asleep on the couch. S.A. had fallen asleep, and she awoke to discover Dayhuff touching the outside of her vagina. S.A. testified about a second incident that occurred when Dayhuff was lying next to her in the living room, and he reached underneath her clothing and touched the outside of her vagina. S.A. testified that Dayhuff placed her hand on his penis. S.A. pulled her hand away from Dayhuff, but he grabbed her hand again and placed it on his penis. S.A. pulled her hand away from Dayhuff again.
Before the jury retired for deliberations, the trial court instructed the jury that evidence admitted tending to prove that Dayhuff committed a crime other than the present crime charged "may be considered solely for the purpose of proving the defendant's plan."
In State v. Damewood, 245 Kan. 676, 783 P.2d 1249 (1989), our Supreme Court recognized two theories for admitting evidence of a prior crime or civil wrong to prove plan under K.S.A. 60-455. Under the first theory, evidence of a prior crime or civil wrong is admitted to show modus operandi or the general method the defendant used to commit similar but totally unrelated crimes. Recognizing that evidence of prior unrelated acts is admissible to show plan, our Supreme Court stated:
"The rationale for admitting evidence of prior unrelated acts to show plan under K.S.A. 60-455 is that the method of committing the prior acts is so similar to that utilized in the case being tried that it is reasonable to conclude the same individual committed both acts. In such cases the evidence is admissible to show the plan or method of operation and conduct utilized by the defendant to accomplish the crimes or acts. [Citation omitted.]" 245 Kan. at 682.
Under the second theory, evidence of a prior crime or civil wrong is admitted to show plan where there is a direct or causal connection between the prior act and the crime charged.
The State acknowledges that this second theory does not apply to the present case. Instead, the State argues that evidence of Dayhuff's prior crimes was admissible under the first theory to show modus operandi or the method used by Dayhuff to commit the unrelated crimes. On the other hand, Dayhuff contends that his prior crimes were not sufficiently similar to the charged crime to demonstrate a modus operandi.
A. Strikingly Similar
In Jones, 277 Kan. at 421, our Supreme Court recognized that several decisions have upheld the admission of K.S.A. 60-455 evidence in sex crime cases where the details of the plan for the prior crimes and the crime for which the defendant was on trial were "strikingly similar." Jones cited State v. Rucker, 267 Kan. 816, 826-29, 987 P.2d 1080 (1999); State v. Tiffany, 267 Kan. 495, 497-502, 986 P.2d 1064 (1999); Damewood, 245 Kan. at 682; and State v. Aldaba, 29 Kan. App. 2d 184, 189-92, 25 P.3d 149 (2002), as examples of such decisions. Moreover, in State v. Tolson, 274 Kan. 558, 564, 56 P.3d 279 (2002), our Supreme Court held that the method of operation in Damewood was so distinct as to be a "signature." Nevertheless, our Supreme Court in Jones pointed out that in State v. Clements, 252 Kan. 86, 90, 843 P.2d 679 (1992), it upheld the admission of prior crimes evidence to prove plan under K.S.A. 60-455 with no requirement of "striking" similarities because the evidence showed that the general method used by the defendant was "'similar enough to show a common approach that is tantamount to a plan.'" Jones, 277 Kan. at 421.
Our Supreme Court in Jones analyzed the admissibility of prior crimes evidence to show plan under K.S.A. 60-455 by comparing the similarities to the dissimilarities between the prior crimes and the crime for which the defendant was on trial. In making this comparison, our Supreme Court discounted the similarities that may exist in many child sexual abuse scenarios. See 277 Kan. at 421-23.
In the instant case, as in Jones, both similarities and dissimilarities existed between the prior crimes and the crime charged. Both S.A. and H.D. were young girls--S.A. was 10 and H.D. was 9 when the abuse occurred. Dayhuff touched both S.A. and H.D. by reaching under their clothing and touching the outside of their vaginas. During one of the incidents with S.A., Dayhuff forced S.A. to touch his penis. Similarly, during one of the incidents with H.D., Dayhuff either forced or attempted to force H.D. to touch his penis. One of the incidents with S.A. and both of the incidents with H.D. occurred in a bedroom at Dayhuff's brother's home where they were staying overnight. Dayhuff and both S.A. and H.D. were lying down during the incidents.
The dissimilarities in this case were that all of the incidents with S.A. occurred when there was another adult sleeping in the room. In contrast, Dayhuff was alone with H.D. when the alleged incidents occurred. Three of the incidents with S.A. occurred in the living room of S.A.'s home, while both incidents with H.D. occurred in a bedroom of Dayhuff's brother's home. Further, Dayhuff told H.D. to keep the abuse a secret or told H.D. that he would kill Brown if H.D. told anyone. On the other hand, there was no evidence that Dayhuff made a similar request of S.A. or threatened S.A. Moreover, H.D. was related to Dayhuff, while S.A. was the daughter of Dayhuff's fiancee.
In arguing before the trial court that Dayhuff's conduct was a "signature act," the State cited State v. Kackley, 32 Kan. App. 2d 927, 92 P.3d 1128, rev. denied 278 Kan. 849 (2004). In Kackley, this court found that the defendant's act of first placing the hands of his underage girl victims on his exposed penis was a "signature" act. This court stated that "it is a signature act because it is so strikingly similar in pattern or modus operandi as to authenticate the conduct as the defendant's when it is allegedly replicated in a later case." 32 Kan. App. 2d at 932. This court distinguished Jones because there was no such signature sexual act in that case. In Jones, our Supreme Court noted that the prior crime involved only fondling in isolation, while the crime charged began with intercourse in a group. In Kackley, this court further distinguished Jones because the dissimilarities in Kackley between the prior acts and the crime charged were either relatively minor or reflected only the degree of success obtained. This court upheld the admission of the K.S.A. 60-455 evidence to show plan. 32 Kan. App. 2d at 932.
In Kackley, the defendant's "signature act" seems to be conduct that might occur in many sexual abuse scenarios. Similarly, the conduct in this case might be present in many sexual abuse scenarios. Nevertheless, the dissimilarities in this case are greater than those in Kackley. Dayhuff perpetrated all of the acts against S.A. when there was another adult in the room. On the other hand, no other people were present in the room when he committed the acts against H.D. Dayhuff told H.D. to keep the acts a secret or threatened H.D., while there is no evidence that he made similar statements to S.A. Further, Dayhuff points out that the act of placing or attempting to place the underage girls' hands on his penis allegedly occurred in only one of the four prior incidents and in only one of the two incidents involving H.D. In Kackley, this type of conduct occurred in both incidents.
Moreover, this case is different from Kackley, where the court found, as another reason for upholding the decision of the trial court, that the admission of the prior crimes evidence to show plan under K.S.A. 60-455 constituted harmless error. See 32 Kan. App. 2d at 932-33. Such a result cannot be reached in the instant case. As discussed later in this decision, the admission of the prior crimes evidence was not harmless under the facts of this cas